Citation Nr: 0512906
Decision Date: 05/12/05 Archive Date: 05/25/05
DOCKET NO. 02-15 654 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas
THE ISSUE
Entitlement to service connection for Post Traumatic Stress
Disorder (PTSD).
REPRESENTATION
Appellant represented by: Vietnam Veterans of America
ATTORNEY FOR THE BOARD
Dan Brook, Associate Counsel
INTRODUCTION
The appellant is a veteran who served on active duty from
July 1973 until June 1975. This matter comes before the
Board of Veterans' Appeals (Board) on appeal from a June 2002
rating decision of the Waco, Texas Regional Office (RO) of
the Department of Veterans Affairs (VA).
FINDING OF FACT
It is not shown that the veteran has PTSD.
CONCLUSION OF LAW
Service connection for PTSD is not warranted. 38 U.S.C.A. §§
1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304
(2004).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. VCAA
On November 9, 2000, the President signed into law the
Veterans Claims Assistance Act of 2000 (VCAA). See 38
U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West
2002). Regulations implementing the VCAA are at 38 C.F.R.
§§ 3.102, 3.156(a), 3.159 and 3.326(a). The VCAA applies in
the instant case. The Board finds that the mandates of the
VCAA are met. The veteran has been advised of VA's duties to
notify and assist in the development of the claim. A
November 2003 letter from the RO informed him of his and VA's
responsibilities in claims development and of the type of
evidence needed to establish his claim. The initial rating
decision in June 2002, a September 2002 statement of the case
(SOC), a February 2003 supplemental SOC and a November 2004
supplemental SOC notified the veteran of applicable laws and
regulations, of what the evidence showed, and why his claim
was denied. While notice consistent with the VCAA was not
provided prior to the decision on appeal, the veteran has
received ample notice since, and has had ample opportunity to
respond. He is not prejudiced by any notice timing defect.
Regarding notice content, the veteran was specifically
advised at a November 2004 informal conference at the RO that
to establish service connection for PTSD he had to show that
he had a medical diagnosis of PTSD. While he was not advised
verbatim to submit everything he had pertinent to his claim,
the November 2003 letter asked him to either submit or
identify any additional information or evidence that would
support his claim. This was equivalent to advising him to
submit everything he had pertinent to the claim. There is no
further duty to notify. See Quartuccio v. Principi, 16 Vet.
App. 183 (2002).
Regarding the duty to assist, VA has obtained the veteran's
service medical records and records of VA medical treatment.
VA also arranged for psychiatric evaluations in October 2000,
November 2002 and September 2004. As was mentioned above,
the veteran was also specifically informed of the necessity
of establishing that he had a medical diagnosis of PTSD. He
has not submitted, or identified (for VA to obtain) any such
evidence. Nor has he identified any other additional
evidence (not already of record) pertinent to the claim. No
further assistance to the veteran is required. He is not
prejudiced by the Board's proceeding with appellate review.
II. Factual Background
The veteran's service medical records do not show any
symptoms, diagnosis or treatment of a psychiatric disorder.
On service separation examination, psychiatric evaluation was
normal. Service personnel records reveal that he
participated in Operation Eagle Pull, the evacuation of Phnom
Penh, Cambodia in April 1975 and Operation Frequent Wind, the
evacuation of Saigon, Republic of Vietnam from April 23, 1975
until May 1, 1975.
In his July 2000 claim, the veteran described stressor events
pertaining to attempts by civilians to flee Phnom Penh and
Saigon.
On September 2000 psychiatric evaluation by Dr. B, the
diagnosis was history of alcohol abuse in remission. The
veteran reported that he never forgot the smell of burning
flesh from Vietnam and it sometimes bothered him. He also
indicated that he had problems falling asleep, sometimes got
anxious when seeing a bus while driving, as it reminded him
of service, and that on a couple of occasions he thought he
heard mortars exploding outside his house. The veteran
reported that he was not anxious during the day, slept six to
eight hours a night and did not have flashbacks or
nightmares. He did not have an exaggerated startle response
and was able to work in a mall surrounded by lots of other
people. The examiner opined that the veteran did not meet
the criteria for PTSD, and that no follow up or medication
was needed unless the veteran's anxiety increased.
On October 2000 VA psychiatric evaluation by Dr. V, the
diagnostic impression was a mental status within the
framework of acceptable normal limits with very mild symptoms
that could be classified as PTSD symptoms. The examiner
indicated that the veteran did not explain well why twenty-
five years passed before he decided that the events he
experienced in Cambodia and Vietnam had resulted in a serious
enough problem for him to seek compensation for PTSD. He
also had difficulty explaining how PTSD currently bothered
him. He claimed some feeling of estrangement and sleep
disturbance but nothing more and was very vague in regard to
nightmares. The examiner thought that the veteran might have
mild depression and some mild anxiety disorder but was unable
to fit him within the PTSD diagnosis.
On November 2002 VA psychiatric evaluation by Dr. H, the
diagnostic impression was mild anxiety. The veteran
indicated that during his service he was not involved in
combat, he lost no one close to him, was not wounded, was not
a prisoner of war, was not involved in atrocities and did not
kill anyone. He was having difficulty falling asleep and
staying asleep but was not having nightmares or flashbacks.
The examiner found a mildly anxious affect and slightly
depressed mood and did not see the veteran as having been in
combat or having any symptoms of PTSD.
VA treatment records from April 2000 to December 2003 show
that the veteran complained of depressed mood and anxiety,
had a positive score on a depression screening and was
assessed as suffering from depression in December 2003.
An April 2004 Dallas veteran's center intake shows clinical
findings of dysthymia and mild PTSD symptoms. The veteran
reported periodic sleep disturbances and intrusive thoughts
of the accidents he witnessed while in service.
On September 2004 VA psychiatric examination, again by Dr. V,
the impression was an essentially normal mental status
examination and no PTSD diagnosis. The veteran reported that
the helicopter pilot who fell in the water after not having
sufficient room to land was subsequently rescued. The
veteran also reported another potential stressor event in
service, being struck in the face during a race riot at Camp
Pendleton. Dr. V found that the riot in Camp Pendleton was
an unfortunate episode but did not qualify the veteran for a
diagnosis of PTSD. He also found that while the veteran
expressed frustration and disappointment at not receiving a
PTSD diagnosis, his mental status was essentially normal and
he had no other psychiatric problems that needed to be
discussed. Dr. V noted that a medical resident, Dr. B, had
given the veteran a diagnosis of PTSD in September 2004, but
that this diagnosis was based on the erroneous assumption
that the veteran had served in combat.
III. Analysis
Service connection may be granted for disability due to
disease or injury incurred in or aggravated by active
military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R.
§§ 3.303, 3.304. To prevail on the question of service
connection on the merits, there must be medical evidence of a
current disability; medical or, in certain circumstances, lay
evidence of in-service incurrence of a disease or injury; and
medical evidence of a nexus between the claimed in-service
disease or injury and the present disease or injury
(disability). Hickson v. West; 13 Vet. App. 247, 248 (1999).
Service connection for PTSD requires medical evidence
diagnosing the condition in accordance with 38 C.F.R. §
4.125(a) [i.e., a diagnosis under DSM-IV]; a link,
established by medical evidence, between current symptoms and
a stressor event in service; and credible supporting evidence
that the claimed stressor event in service occurred. Where
the claimed stressor relates to combat with the enemy, and
the evidence establishes that the veteran did engage in such
combat, the veteran's lay testimony alone may establish the
in-service stressor. Id. Service department records must
support and not contradict the claimant's testimony regarding
noncombat stressors. Doran v. Brown, 6 Vet. App. 283 (1994).
When there is an approximate balance of positive and negative
evidence regarding the merits of an issue material to the
determination of the matter, the benefit of the doubt in
resolving each such issue shall be given to the claimant. 38
U.S.C.A.
§ 5107(b).
The threshold matter that must be addressed in any claim
seeking service connection is whether the claimant actually
has the claimed disability. Hickson, supra. See also
Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Here,
multiple psychiatric evaluations, most recently in September
2004, have failed to establish a medical diagnosis of PTSD.
While the September 2004 VA examiner noted that a medical
resident had assigned a PTSD diagnosis to the veteran's
condition, it was also noted that this diagnosis was based on
the faulty premise that the veteran served in combat. Since
the veteran does not even allege that he served in combat
(his stressor accounts are of noncombat nature) and the
record shows no evidence of combat service, such diagnosis
cannot be considered credible. The veteran's stressors
accounts are related to his evacuation duty and to an
allegation of being victimized in a race riot. There is no
diagnosis of PTSD based on such events. While his
acknowledged participation in evacuation duties corroborates
that he likely witnessed events that might be considered
stressors, whether or not such events were sufficient to form
the basis for a PTSD diagnosis is a medical determination.
See Cohen v. Brown, 10 Vet. App. 128 (1997). Here, examiners
have noted the veteran's evacuation duties, but have
indicated that such have not resulted in PTSD.
While the veteran may believe that he suffers from PTSD, as a
layperson, he is not competent to establish such diagnosis by
his own opinion. Espiritu v. Derwinski, 2 Vet. App. 492
(1992). The preponderance of the evidence is against a
finding that the veteran has a medical diagnosis of PTSD.
Accordingly, the threshold requirement for establishing
service connection for PTSD is not met, and the claim must be
denied.
ORDER
Service connection for PTSD is denied.
____________________________________________
GEORGE R. SENYK
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs